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Thursday, September 04, 2008

When, if ever, should police shoot at moving cars?

The Senate Criminal Justice Committee earlier this year held a hearing on causes of law enforcement officer deaths and ways to prevent them, so I was interested to see a discussion in the Dallas News about whether a law enforcement officer who believes a driver is trying to run him over should shoot at the vehicle ("Police policies on shooting at cars differ," Sept. 4). A criminologist from South Carolina offered this advice that might save lives: "If you've got time to pull and point your weapon," he said, "use that time to get out of the way."

The News examines Metroplex police department policies on shooting at moving cars and discovers they're all over the map:

Dr. [Geoffrey] Alpert, who studies police use of force, believes agencies should ban shooting at moving vehicles except in extreme cases, such as if an officer has fallen or is trapped with no escape and deadly force is a last resort.

"And these extreme situations should be detailed," he said.

The Garland Police Department's policy authorizes the use of deadly force to "protect the officer or others from what is reasonably believed to be a threat of death or serious injury" or to prevent the escape of a violent felon. It doesn't address shooting at moving vehicles, but other local departments do.

The Dallas Police Department limits but doesn't ban the practice: "Discharging a firearm at a moving vehicle is prohibited unless necessary to prevent imminent death or serious bodily injury to the officer or another person."

The Fort Worth police policy says: "We will not shoot at moving vehicles unless there is no other option due to the risk of imminent serious injury or death."

Plano police also limit the use of deadly force against moving vehicles "except in self-defense, the defense of another police officer, or another person."

"The assumption that a fleeing vehicle is a deadly weapon ... is not in itself justification to use deadly force," said Officer Rick McDonald, a Plano police spokesman.

But Garland isn't the only agency that leaves the matter to an officer's discretion.

"If an officer's life is in danger or the life of another, they can use deadly force," Maj. Ruckel said.

The Texas Department of Public Safety, which includes the Highway Patrol, Texas Rangers and other state agencies, doesn't address the matter in its policy guidelines because "every situation is different," spokeswoman Tela Mange said.

"It's officer discretion," she said. "If they perceive that there's an imminent threat, they can take any action they feel necessary to protect themselves."

State policy

Local agencies can write their own policies on the use of deadly force, said Frank Woodall of the Texas Commission on Law Enforcement Officers Standards and Education, the state agency that licenses police officers.

But he said individual policies must be at least as restrictive as the state's basic police academy curriculum, which cites the Penal Code authorizing deadly force to defend oneself or a third person from an imminent lethal threat.

"That's the minimum that has to be taught," Mr. Woodall said.

However, the curriculum doesn't address shooting at moving vehicles.

The language in the Fort Worth policy strikes me as the example most likely to minimize injury and general harm while giving officers full authority to protect themselves. By comparison, the Garland policy authorizing shooting at vehicles to "prevent the escape of a violent felon" leaves open the possibility of using of force in a variety of troubling circumstances.

Giving officers such discretion also leaves to chance whether an officer misinterprets a driver's intent and shoots someone who wasn't intentionally trying to harm them, as was claimed in the Garland case and in other high profile reported around the country that spawned changes in other cities' policies.

There are obvious problems with shooting at moving cars. For starters, it puts bystanders at risk when officers miss. Not only that, if they're successful in disabling the driver, the vehicle might wreck and injure more innocent people, or else harm the officer who's now standing in front of the car and shooting instead of dodging out of the way. In the Garland case described in the News story, the suspect took two bullets, drove away, then crashed the car down the road. Here are the details:

Charlie Wright kept driving, even after being shot twice early Aug. 23 by an officer who believed the 19-year-old was trying to run him down in the driveway of a gated apartment complex.

"I didn't see the officer until the shots were fired," said Mr. Wright, who says he was shot through an open passenger-side window and from the back.

Wounded in the right shoulder and left thigh, he drove away from the apartments and was spotted about three miles away going the wrong way in the 2800 block of Belt Line Road, near Jupiter Road. He was arrested after hitting a parked car.

Luckily in this instance the shot suspect only caused additional property damage, but it's easy to imagine a scenario where someone veers into a crowded sidewalk instead of just a parked car.

Policies giving police wide discretion to shoot at moving vehicles put the public at risk and force officers to evaluate options at a moment when their safety is best served by them getting out of the way.

27 comments:

Here are a couple of Texas Statutes that anyone, whether a police officer or not, who decides in the heat of the moment to use deadly force against occupants of a vehicle, moving or otherwise, should keep in mind:

Even though an actor is justified under this chapter in threatening or using force or deadly force against another, if in doing so he also recklessly injures or kills an innocent third person, the justification afforded by this chapter is unavailable in a prosecution for the reckless injury or killing of the innocent third person.

Texas Penal Code – Chapter Six - Culpability Generally

§ 6.03. DEFINITIONS OF CULPABLE MENTAL STATES.

(c) A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

Who, other than the operator, is in the vehicle I’m going to shoot? Where are my fired rounds going to end up? Are any other people around who might be killed or injured by the rounds I fire?

I wouldn’t say, “Never”. I would agree with your suggestion that the officer’s time would be better spent getting the hell out of the way. That seems to be a more intelligent option.

Pale rider: Yes, This is Texas and thankfully not California, but it is also the twenty-first century and if a peace officer makes a wrong decision as to deadly force he will be unable to “unfire” his weapon and he may end up looking at criminal homicide charges to say nothing of wrongful death lawsuits.

Well, I must say that if it is me or them, by God, if I am able, it will be them. The moral of the story, don't try to run me over because I can shoot and move.

pale rider I am just really glad that this is not New York and we don't have that Sean Bell fiasco. The media tried and convicted the police for shooting an "unarmed man" who had just hit a police officer with his car. Thank God the courts rely on evidence and not the racial agitation of Al Sharpton.

A stupid move to not get out of the way! The act of firing on a moving vehicle by one probation officer, instead of moving out of the way, cost all the officers of the Bexar County Probation department the right to bear arms and defend themselves. Chief Fitzgerald failed to rewrite policy, hold the officer accountable, provide all officers training in new policy and procedures. He in his infinite wisdom(?) just took the option of carrying weapons away from ALL the officers! That really is the STUPID part of the whole story!!

Don't get me wrong, If some S.O.B. needs killing so that he doesn't kill you, by all means kill the S.O.B. Let his momma and not yours be the one who goes to bed tonight and sleeps on a tear stained pillow.

What I was attempting to stress is that any incident you decide to resolve with deadly force had damn well better be resolved within the guidelines of Chapter Nine of the Texas Penal Code. And if you do manage to hit somebody it had damn well better be the individual you are shooting at and not a bystander.

Sure, deputylastrites, anybody can. But that doesn't mean you'll hit what you're aiming at, or that trying to do two things at once won't distract you and get you run over. If someone is actually trying to hit you with a car (or if you mistakenly believe that's the case), trying to shoot them will make it more likely the officer won't get out of the way. We're not talking about a circumstance where someone is firing a weapon from a vehicle.

To Dan, lots of people become "back seat drivers" when you start firing off rounds in public places. Firing a gun where you might hit bystanders pretty much gives everybody else an interest in what you're doing.

To 9:40 - what liberals are you talking about? Why not debate what's been said instead of constructing a straw man caricaturing what you imagine liberals believe and arguing against that? Yawn.

Sorry if I don't trust your marksmanship. Like someone said, if you can move, then MOVE. If there is no other option but to shoot (you are prone or otherwise hindered from moving), then by all means, shoot. But, keep this in mind when there are innocent bystanders around.

"New York City police statistics show that simply hitting a target, let alone hitting it in a specific spot, is a difficult challenge. In 2006, in cases where police officers intentionally fired a gun at a person, they discharged 364 bullets and hit their target 103 times, for a hit rate of 28.3 percent, according to the department’s Firearms Discharge Report. The police shot and killed 13 people last year. In 2005, officers fired 472 times in the same circumstances, hitting their mark 82 times, for a 17.4 percent hit rate. They shot and killed nine people that year"

I would be happy if all this Tejas bravado just keeps itself in Texas. I understand that it makes yer head hurt if you have to think past the "them or us" pull the trigger solution, and I wouldn't want a whole bunch of manly Texans with a whole lotta head pain.

DPS has no policy on this so that they can make it up as they go along. I once represented an officer who narrowly averted death or injury in a shoot-or-be-run-over situation when he killed his DWI would-be assailant with some very fancy marksmanship. He got put on the Governor's detail. On the other hand, I represented an Hispanic Trooper in a border town in a somewhat similar situation who attempted to shoot out the fleeing doper's tires, and missed, but eventually made an arrest after a foot pursuit and seized a couple hundred pounds of dope. He was subjected to disciplinary action.

It's no different with pursuits. The Department's policy on this is pretty fuzzy, and the Department's "case by case" analysis isn't always consistent in my view.

Personally, I advise my clients that policy-or-no-policy, the "unwritten policy" at DPS is "don't shoot at moving vehicles unless you are about to die."

And try as I have, I can't get these guys to stop being cowboys when it comes to pursuits. I keep telling them "that's why God gave y'all radios and helicopters." But they keep chasing people, in good situations and bad. The same judges who will contort themselves and the law into a pretzel to grant qualified or official immunity to you after you shoot someone, won't lift a finger to grant the same immunity if an innocent bystander dies in a pursuit.

Hey guys, I know Monday morning quarterbacking is fun but we also need to understand that Police, not unlike soldiers when threatened with death often react violently out of self preservation. I know that we are supposed to be "highly trained supermen." Honestly and without shame, I almost shot a driver that was fleeing but he changed course without striking me. I was scared (pardon the term) "____less." Would I have killed him you might ask? I was scared enough I would have unloaded into him if I thought it would save my life and I could see my family again. Luckily he crashed into a wall right after he avoided hitting me and me with another officer were able to retrieve him safely.

You must put the human factor into this. If you drive a weapon in police or soldiers they will often shoot out of self preservation. You never know what you will do until you are faced with that situation.

So punishing the police for preserving their own lives may be the undoing of American law enforcement. Why would anyone want to be a cop when you are expected to ignore much of what makes you a human being.

A great example is the Texas Youth Commission. Guards there are expected to not defend themselves if attacked by dangerous Youths in custody. They must attempt ineffective non-harming techniques even threatened with stabbing, or an attack from a blunt object. You know, "handle with care" instead of realistic survival techniques in dangerous situations. Because of this and other ridiculous policies many good employees do not want to work there? Why let people beat you up? So what TYC has now (for employees) is people that just got out of high school (teenagers) or people that had difficulties at other jobs. Not to say that everyone is like that but I know for a fact that not very much emphasis is being placed on getting and retaining quality employees as on maintaining a Youth to Officer ratio. Any non-felon warm body will do. We do not want this to happen in law enforcement.

In the case of the New York Police Department. Why would anyone want to join a department in a city that doesn't support them? The police for the longest time were starting their police salary at something like in the upper twenty thousands per year. The police in New York City are constantly under attack from some of the most brutal criminals in the country and their hands are cuffed more than the criminals. That is why many cops from their go to other departments after a few years. Don't get me wrong, the ones that can stick it out are great but most people, unless they have family their cannot live off of their meager salary for the first few years.

All I am saying is that most people, the civilian population's has the instinct to flee when threatened with deadly violence. Unfortunately, in most cases the police don't have the option to flee. If there is a problem, they must tend to it or who will?

Also from a legal standpoint. In Tennessee vs Garner it was ruled that police could not fire on a person to apprehend them unless their unless that person was an clear and present DEADLY danger persons in society. Attempting to kill a police officer with a car falls under this category. Why do you think most of these police officers cases are being dismissed? Because, just like any other citizen the police have the right to defend their own lives and have the obligation to apprehend people who kill or try to kill.

So everyone out there I want you to imagine.

You are a police officer. You just got a call of an armed man who appears to be "high" on methamphetamines making threats to people in a neighborhood. You arrive at the scene with other officers on "high alert." You are crossing the street and you see the man that matches the description of the person that you are looking for behind the wheel of a vehicle. Before you can say, "Stop! Police!" The man drives his vehicle straight for you in a clear attempt to kill you.

Honestly, what would would most of you do? I'll even give you options.

A. Shoot the manB. Call the ACLU and file a complaint against the man for violating your civil libertiesC. Jump over the carD. Wet yourself (hey it happens)E. Attempt to move out of the way and allow the crazed man to escape

So lets just be real, we can talk about this all day, but if a police officer or a soldier is threatened with death, most people in warrior class will react violently to their lives being threatened. This is what separates them from the main stream population. If we have police officers or soldiers that flee every time something scary happens we will be in bad shape as a society. The reason that we all sleep comfortable in our beds is because rough men stand ready to do violent acts in our defense.

"If we have police officers or soldiers that flee every time something scary happens we will be in bad shape as a society."

Deputylastrites, this is a total red herring. This isn't about cops or the "warrior class" proving their manhood!

You're the one that wants cops to be "supermen," standing tall in the face of a vehicle barreling down on them in order to shoot the driver. How does that complaint apply to those who say the officer should prioritize their own safety over such needless cowboy tactics?

Of the options you present, E is the only rational one if the driver poses no danger except possibly using the vehicle as a weapon. After all, if you shoot the driver he could still run over you or someone else. Getting out of the way is safest for both the cop and the public, no doubt, and also compliant with Tennessee v. Garner in instances (as in the case you described) when the officer misinterprets a driver's intent.

Finally, it's not Monday morning quarterbacking to say a preventive policy should be put in place up front. There's a reason, after all, that the "warrior class" in this country is placed under civilian authority. best,

If the cop doesnt shoot then the crazy driver may end up running down someone without a gun. If someone is wielding a vehicle as a weapon why think they'll stop the behavior once the officer is out of the way?

There is a good reason that use of a motor vehicle raises evading arrest to a minimum state jail felony.

I will say this once, you just don't understand. If you were faced with what officers were faced with you would.

Sometimes we can't get out of the way. So many cops die because they were intentionally ran over and the media has the nerve to call these people "unarmed."

Well say what you will, until someone tries to intentionally kill you; you just won't get it.

Police are constantly under attack by criminals and ignorance. People just don't really know what the job is about. Some how people seem to understand that when a soldier goes to Iraq and sees or experiences some really bad stuff that scared them half to death. They understand when one of those people have problems. Soldiers at least have the benefit of good PR.

However if some of the same stuff happens to police officers we are attacked by the media and wild accusations. Are we found to be innocent most of the time; of course. Are there some bad apples? Of course and they need to go to jail.

I challenge you to ride along with your local police Grits. You may actually be able to understand some of the things that we do.

I also challenge you to request a shift at any TYC unit. You talk a lot about TYC and of course some of it for good reason. I think you could really have a story. You need to see these officers who are beat up constantly by youths and the fact that nothing happens to them but them getting locked in a cell for a few days. Then the officer will be under investigation or suspended because when he was being beaten by a youth he raised his hand to block the blows and he might have struck the poor child. I think you need to experience what you write before you can call ME a cowboy. This I challenge you.

Grits the truth is YOU are the "cowboy." You jump on your high horse and attack what you don't understand. You don't understand me and you definitely don't understand law enforcement. We are just words on your blog, not human beings. Yippe-Ki-Yay. You go getem' cowboy.

Over my 23 year career as a peace officer I had multiple opportunities to shoot an aggressively belligerent citizen and would have probably been justified under the Texas Penal Code in doing so. I always managed to maintain an edge over the bad guy, was able to effect an arrest, and did not find it necessary to use deadly force. On many of those occasions the only difference between arresting a live suspect and calling for a body bag was a couple more ounces of pressure on my trigger. However, the one time when circumstances were 100% appropriate for returning fire and I was 100% certain as to the source of the incoming fire there were several bystanders between me and the person shooting at me. I have been “clipped” by motorists (whether through stupidity, inattentiveness, or intentional malfeasance) on several occasions while directing traffic at sporting events and around crime or accident scenes but never felt justified in shooting into a car that turned out to contain passengers other than the driver. I will not fire a weapon into or through a group of bystanders. The rules of engagement (Chapter Nine – Texas Penal Code) do not allow it.

The Texas Penal Code is written in understandable English. It means exactly what it says. It contains periods, commas, colons, semi-colons, and hyphens but very few if any (none if my memory serves) question marks. It also changes occasionally, at least every legislative session. Some of these changes are minor and some major. Some of the changes tend to make the police officer’s job easier, some harder. Some of the changes tend to alleviate some pressures on the general public, some add to an already too long list of offenses. The peace officer who either doesn’t bother to keep up with the code’s changes or doesn’t think the code’s restrictions apply to him needs to find another line of work.

I understand the need to survive a shift and go home to my wife and children when the day is done . After all, those people carry a higher priority to me than does the general population. I also understood that every time I placed my sidearm on my hip and left my home that the chances were high that I would have to use that weapon before I returned to my family. But, I also understand that once I take a life, even if it needs taking, I can’t give it back if I’ve acted too rashly and fired my weapon too quickly. If that makes me a bleeding heart p*&%y police then, I guess I am. I’d rather my remembrances deal with the times I probably should have squeezed a little harder on the trigger than deal with the times I shouldn’t have. There is no room in the peace officer profession for what has, unfortunately, been named the “John Wayne Cowboy” approach. After the cameras quit rolling John Wayne’s dead bad guys got up, dusted themselves off, and got in line at the next casting call so they could be “killed” again in the next movie. Dead is Dead in the real world.

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